Calcutta High Court (Appellete Side)
Sri Tapan Banerjee vs Sri Goutam Chandra Das & Anr on 17 September, 2019 1 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction APPELLATE SIDE BEFORE:
The Hon’ble Justice Soumen Sen and
The Hon’ble Justice Ravi Krishan Kapur F.A.T. No. 622 of 2016 With C.A.N. No.1170 of 2019 SRI TAPAN BANERJEE Vs. SRI GOUTAM CHANDRA DAS & ANR. For the Appellant : Mr. Sukanta Chakraborty, Adv. Mr. Anindya Halder, Adv. For the Respondent : Mr. Srijib Chakraborty, Adv.
Mr. Avirup Mondal, Adv.
Mr. Soumalya Ganguli, Adv.

Hearing concluded on : 13.09.2019 Judgment on : 17.09.2019 Soumen Sen J.:-This appeal is arising out of judgment and decree dated 7th June, 2016 passed by the learned Civil Judge, Senior Division, 2nd Additional Court at Burdwan in a suit filed by the respondents for specific performance of an agreement for sale. The learned Court below decreed the suit in favour of the plaintiff and directed the appellant to execute and register a sale deed in respect of ‘A’ scheduled property in favour of the plaintiffs/respondents within a period of 60 days from the date of the judgment. Certain consequential directions were given for deposit and execution of the sale deed.
2 This decree is now assailed before us by the defendant. In the appeal the plaintiffs/respondents have filed an application for amendment of the plaint seeking inclusion of prayer for possession of the ‘A’ Scheduled property consequent upon a decree for specific performance being allowed in favour of the plaintiffs/respondents by the Trial Court. This application is opposed by the appellant/defendant. The principal grievance of the appellant in this appeal is that the learned Trial Judge had passed the decree in favour of the plaintiffs/respondents without considering the existence of a prior oral agreement between the parties whereby the plaintiffs/respondents had agreed to pay a sum of Rs. 35 lakhs as the consideration amount for purchase of the suit property.

Mr. Mukherjee, the learned Senior Counsel has submitted that the plaintiffs/respondents have failed to prove and establish readiness and willingness on their part to complete the transaction in absence whereof the Trial Court should not have passed a decree in favour of the plaintiff. Moreover, the learned Trial Court has failed to take into consideration that on 1st June, 2012, plaintiffs were not in possession of the suit property and did not pay the agreed consideration amount of Rs. 35 lakhs within a period of 4 months from date as stipulated in the said agreements. It is further submitted that the agreement for sale between the parties have been vitiated by fraud, undue influence, coercion and misrepresentation.
3 The learned Trial Judge also had failed to take into consideration that the price of the property had increased in the meantime and even if it is assumed that there is a valid agreement between the parties, the learned Trial Judge ought to have considered the present market value of the property and determine such price before granting a relief in favour of the plaintiff.

It is submitted in the alternative that considering the present market value of the property, enforcement of the agreement for sale would be inequitable.

It is submitted that the power of the Court in allowing a prayer for specific performance is discretionary. The trial court in any event could not have allowed the claims for specific performance without requiring the plaintiff to pay the balance consideration of Rs.11.50 lakhs that is the differential amount between 23.50 lakhs and 35 lakhs. Mr. Mukherjee submits that the trial Court has completely overlooked and ignored that in terms of the oral agreement between the parties, the plaintiffs /respondents had in fact agreed that they would assist the appellant to get a flat at Burdwan Housing Development Private Limited as well as rented premises from where the appellant could run his electrical business. The consideration price was arrived at Rs. 35 lakhs on the basis of such consideration although at the relevant point of time, the property is capable of fetching a much higher price. This oral agreement has been discarded by the learned Trial Judge on grounds unsustainable in law. The learned Trial Judge has overlooked material piece of evidence in relation to
4 the said oral agreement and could not have discarded the said oral agreement merely because nothing is reflected in the deed of sale. Mr. Srijit Chatterjee, the learned Counsel appearing on behalf of the plaintiffs/respondents has submitted that under proviso to section 22(2) on a just consideration the Court can allow a prayer amendment of the plaint to include a prayer for possession. It is submitted that the power of the appellate Court to allow such amendment even at the appeal stage is well recognized and the Code of Civil Procedure also permits the appellate Court to allow such amendment if it is necessary.

Mr. Chakkraborty has emphasized on the verb “shall” used in the proviso to argue that once the Court is of the view that it is required in the interest of justice to allow possession which should be implicit in a suit for specific performance, it is the duty of the Court to allow such relief of possession as without it the plaintiff would not be able to enjoy the property. Mr. Chakraborty submits that it has been judiciary recognised in various decisions that in appropriate cases of specific performance of contract of sale of immovable property, the Court is competent to order delivery of possession of the property even if not specifically asked for, by allowing suitable amendment in the plaint. It is submitted that even at the stage of execution, the executing court has jurisdiction to allow amendment of the plaint to include a prayer for possession and it would be a travesty of justice to ask the decree holder to file a separate suit for possession. It is submitted that the court can grant relief of recovery of possession once the suit is decreed for specific performance.
5 The learned Counsel in this regard has placed reliance on the judgment in Babu Lal vs. M/s. Hazari Lal Kishori Lal and Ors. Reported at (1982) 1 SCC 525, Krishnamurthy Gounder vs. Venkatakrishnan and Ors. Reported at 2012 SCC OnLine Mad 155, Kartick Chandra Pal vs. Dibahar Bhattacharjee reported at AIR 1952 Cal 362, Jafar Mian vs. Smt. Qaiser Jahan Begum and Ors. Reported at 2006 SCC OnLine AII 753 and Debabrata Tarafder vs. Biraj Mohan Bardhan reported at AIR 1983 Cal 51.

Mr. Chakrabotry has supported the impugned judgment on the ground that the learned Single Judge has dealt with the claim of the respective parties in great details and on justifiable grounds discarded the oral agreement as the plaintiff had failed to prove oral agreement with regard to Rs.35 lakhs.

Mr. Chakraborty has submitted that the argument of the defendant that an oral agreement had been formed simultaneously with the written agreement for sale is not sustainable in view of Section 92 of the Evidence Act and the learned Trial Judge has rightly rejected this story of oral agreement when admittedly there is a written contract between the parties containing all the essential terms of the agreement for sale. We have perused the judgment as well as the documents exhibited at the trial.

Goutam Chandra Das, plaintiff no.1 appeared before the learned Trial Judge and had deposed for self and on behalf of all other plaintiffs. The
6 agreement is a registered instrument. He had proved the said agreement including the consideration amount and earnest money paid by the plaintiff to the defendant aggregating to a sum of Rs.8.5 lakhs. On 21st November, 2012 the plaintiff received the loan and approached the defendant for executing a deed of sale but the wife of the defendant/appellant informed the plaintiff no.1 due to the absence of the defendant no.1 the deed could not be executed. Thereafter again on 28th November, 2012 the plaintiff approached the defendant who then personally refused to execute the sale deed. The service of the notice was proved by Goutam. During his cross examination Goutam described the house as a two storied building. The value of the property was assessed with the help of the assessor. About fifteen to twenty days prior to the execution of the sale deed searches have been made at the Registration Office to get information regarding valuation of the property and on the basis of the valuation report of Registration Office the agreement was executed on 3rd August, 2012.

Mr. Sadananda Mondal, adduced on behalf of the plaintiffs and submitted that he along with Ashish, Somnath Mukherjee and parties to suit were present when the consideration amount was fixed at Rs.23 lakhs and on that basis the agreement for sale was executed and registered on 3rd August, 2012. The defendant received a sum of Rs.8 lakhs as earnest money and subsequently a further sum of Rs.50,000/- on 9th August, 2012 by cheque from the plaintiffs and the defendant had agreed to complete registration of the deed by 15th December, 2012 on receiving the balance consideration amount.
7 Ashish Kumar Pati another witness produced by the plaintiff corroborated the statement of the other witnesses. He however stated that at the time of negotiation the wife of the defendant was present and during such negotiation the defendant had claimed Rs.24/25 lakhs as consideration amount which was however mutually settled at Rs.23 lakhs. The dispute lies with regard to the consideration amount agreed upon by the parties for the sale of three storied building at Burdwan. The defendant, Mr. Tapan Banerjee in his evidence has stated that the plaintiff had agreed to purchase the property to a sum of Rs.35 lakhs, although the defendant initially demanded Rs.50 lakhs as consideration amount. The valuation certificate issued by the Registration Office on 24th February, 2012 revealed that the value of the property on that date would be Rs.24,56,430. The suit property was 3 storied building although it was not mentioned in the agreement the certificate of valuation produced by the plaintiffs was fraudulent. The plaintiffs agreed to assist the defendant in getting a flat at a moderate price as well as a shop room for electrical business due to paucity of fund the plaintiffs paid a sum of Rs.8.5 lakhs at the initial stage and prepared an agreement for sale to be executed by the appellant. On receiving the said amount the defendant executed an agreement for sale on 3rd August, 2012. The actual consideration amount was Rs.35 lakhs. The existence of the 2nd floor of the building was not mentioned in the agreement at the request of the plaintiff for avoiding excess registration charges as the plaintiff refused to pay the balance amount of Rs.26.5 lakhs the defendant refused to execute the agreement. The oral agreement entered into between
8 the parties was not fulfilled as the plaintiffs have refused to pay the remaining sum of Rs.26.5 lakhs.

During his cross examination the plaintiff admitted execution of the sale agreement on 3rd August, 2012. The defendant also admitted that he had no knowledge of valuation of the property settled by the registration office. He further deposed that out of the earnest money he discharged his personal loan, and also had booked a flat. He further deposed that he voluntarily decided to sale the property. He also acknowledged that he refused to receive the notice sent by the plaintiff before the date of execution of the sale deed as per terms of the agreement. He also admitted that he did not appear in the Registration Office on 15th December, 2012 and that he never made any attempt to know the exact valuation of the suit property. He also admitted that there is a stipulation in the agreement that if the plaintiffs refused to purchase the property then the defendant would be at liberty to sell it to a third party.

The wife of the defendant in her deposition has stated that the consideration amount was never fixed at Rs.23 lakhs and she had reiterated the same explanation offered by the appellant for not registering the suit property in favour of the plaintiff. She further stated that she was present when the defendant demanded Rs.35 lakhs as consideration money which alleged to have been agreed and accepted by the plaintiff. She further deposed that she was present during negotiation and finalisation of the sale in August, 2012. She, however, had no knowledge of the market value of the property.
9 One Santana Mukherjee adduced evidence on behalf of the defendant. The said witness was produced to prove the alleged oral agreement. Santana in her deposition has stated that the defendant demanded Rs.35 lakhs as consideration money which was agreed and accepted by the plaintiff. However, she had admitted that she was not present during execution of the said agreement and payment of earnest money. Promodh Chowdhury, another witness produced by the appellant stated that the defendant demanded Rs.35 lakhs as consideration amount which was agreed and accepted by the plaintiff. This incident had allegedly happened in his presence. During his cross examination he stated that he was present during registration of the agreement for sale but he did not become a witness to the said agreement. He admitted that the defendant had received Rs.8.5 lakhs as earnest money. The payment was paid partly by cash and partly by cheque. However, he had no knowledge about the market price of the property in the locality.

Joy Prakash Yadav, another witness on behalf of the defendant had echoed and reiterated the version of Promodh.

On the basis of the aforesaid evidence the learned Trial Judge has decreed the suit in favour of the plaintiff. The considerations that weighted by the learned Trial Judge appears to be that the agreement for sale has been admitted by the defendant. The defendant has also accepted the earnest money. Although the defendant had raised the plea of coercion, misrepresentation, undue influence etc but the defendants had failed to establish any of such pleas. On the contrary, the defendant in his deposition
10 has admitted that he executed the agreement for sale voluntarily without any coercion. The defendant during his deposition has also clearly stated that only after going through the contents of the agreement for sale and realising its true import had executed the said agreement by putting his signature on the agreement. The learned Trial Judge has relied upon the decision of the Hon’ble Supreme Court, Union of India Vs. Ibrahim Uddin and Ors. reported at (2012) 8 SCC 148 where it is observed that admission is the best piece of evidence that an opposite party can rely upon though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.

The learned Trial Judge has also relied upon the decision of the Hon’ble Supreme Court in Satya Jain (D) Thr. LRs and Ors. v. Anis Ahmed Rushdie (D) Thr LRs. And Ors reported at (2013) 8 SCC 131 whereon deciding the question of readiness and willingness of the plaintiff has required under Section 16 of the Specific Relief Act. It was observed: “No straightjacket formula can be laid down and the test of readiness and willingness of the plaintiff would depend on his overall conduct, i.e. prior and subsequent to the filing of the suit which also has to be in the light of the defendant”. The evidence clearly shows that on 3rd August, 2012 the parties had agreed to execute and register the deed of sale within 15th December, 2012. The agreement also clearly acknowledged payment of Rs.8 lakhs by the plaintiff to the defendant. The agreement also mentions the consequences the default of either parties. Although in Clause 5 of the agreement a right
11 was given to the defendant/appellant to return the advance sum and transfer the land to any person of his choice but that can happen only if the plaintiff failed to pay the total consideration price within 15th December, 2012. The plaintiffs have been able to establish that the amount was tendered within the stipulated period. The plaintiff has been able to prove his readiness and willingness to go ahead to the agreement for sale and discharge all his obligations as required under the agreement. The defendant no.1, in his cross examination has also admitted the default clause as he stated in his cross examination:- “A specific date was mentioned in the said Bainanama and it was agreed that I would execute the deed of sale in favour of the plaintiff on that date. Prior to the date fixed in the Bainanama for execution of the deed of sale the plaintiff issued a letter to me which I refused to accept”.

The evidence clearly shows that the agreement for sale is an out come of voluntary Act on the part of both sides. That the plaintiff was ready with the fund and capable of discharging their obligation under the agreement cannot be disputed. The defendant had admittedly refused to accept the consideration amount. Although it is submitted on behalf of the appellant that in the event the agreement for sale is concluded at Rs.23 lakhs would give an unfair advantage to the plaintiff and accordingly the court should not exercise discretion in favour of the plaintiff. We are unable to accept the said submission for the simple reason that the parties have agreed to a consideration of Rs.23 lakhs on 3rd August, 2012 and the sale deed was to be executed on December, 2012 within a span of 3 ½ months and the
12 plaintiffs were ready with the fund and requested the defendant to execute and register the deed of sale by the stipulated period of 15th of December, 2012. The plaintiffs were present at the office of the Registrar with the money to execute the agreement but for the failure of the defendant to be present the agreement could not be executed and registered. It is clearly stated in the Specific Relief Act in Section 20 that mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b) of Section 20(2) of the Specific Relief Act 1963. However the defendant did not run any such case in the written statement nor in their evidence.

Moreover, the defendant in the written statement has not stated that the defendant approached the plaintiff for loan and during such discussion the plaintiffs gave proposal of entering into an agreement for sale and on that basis a sum of Rs. 8.5 lakhs was paid to the defendant by the plaintiffs as advance money.

Mr. Mukherjee was quite vociferous and critical about the judgment on the ground that the learned Trial Judge did not take into consideration the oral agreement between the parties. The oral agreement requires a higher standard of proof than a written agreement. In Dinesh Ranchhoddas Kapadia vs. Monoj S. Kasliwal reported at 2014 (3) CHN (Cal) 5, one of us had the occasion to consider whether the amount paid was a loan or an earnest money based on a claim that an oral agreement between the parties
13 by which the amount paid to the defendant was on account of loan under an oral agreement and not an earnest money. It is stated, paragraph 10 there, that –

“There is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, heavy burden lies on the party relying on such oral agreement to prove that there was consensus ad idem the parties for a concluded oral agreement for sale of immovable property, and that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement, if any, to be executed subsequently would be a formal agreement incorporating the terms already settled by the oral agreement. (Brij Mohan and ors v. Sugra Begum and ors (1990) 4 SCC 147, p 158.)” This was considered in an unreported decision of this court in Smt. Kanti Devi Bhutoria & Ors. Vs. Smt. Srila Dutta & Anr. (decision dated 16th October 2015 in C.S. No.451 of 1989 With C.S. 348 of 1991), where it is stated that –

“The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The acceptance must be absolute, and must correspond with the terms of the offer. The burden of showing the stipulations and terms of the contract and that the minds were ad item is, of course, on Bhutoria. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Where there are negotiations, the court has to determine at what point, if at all, the parties have reached agreement. Negotiations thereafter would also be
14 material if the agreement is rescinded. (See Brij Mohan & Ors. Vs. Sugra Begum & Ors. reported at (1990) 4 SCC 147, Mayawanti Vs. Kaushalya Devi reported at (1990) 3 SCC 1 and Dinesh Ranchhoddas Kapadia Vs. Manoj S. Kasliwal reported at 2014 (3) CHN (Cal) 5).” On the basis of the analysis of evidence as observed earlier we feel that the oral agreement has not been proved. In view thereof the appeal fails. However there shall be no order as to costs.

The application for amendment of the plaint is merely consequential and having regard to the fact that the appeal fails, the plaintiff is entitled to the said relief. The application for amendment of the plaint is allowed. The department is directed to carry out the amendment within 2 weeks from date. The decree of the trial Court is upheld. I agree (Soumen Sen, J.) (Ravi Krishan Kapur, J.)

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